IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 392 OF 2004
Ashok Kumar Das & Ors. ... Appellants
Versus
University of Burdwan & Ors. ... Respondents
JUDGMENT
A. K. PATNAIK, J.
This is an appeal against the judgment and order dated
08.08.2002 of the Division Bench of the High Court of
Calcutta in MAT No.2604 of 2001 and CAN No.1624 of 2001
filed by some members of the non-teaching staff of the
University of Burdwan [For short `the University’].
2. The facts very briefly are that promotions to different
grades of non-teaching staff of the Burdwan University were
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being done on the basis of seniority. On 26.06.1995, the
Executive Council of the University considered the principle of
promotion as enunciated in the Government Order dated
17.10.1985 and resolved that criteria of `Seniority-cum-
Efficiency’ as enunciated in the aforesaid Government Order
dated 17.10.1985 will be followed for promotion to different
grades of non-teaching staff of the University. The Executive
Council of the University in its meeting on 26.06.1995 also
resolved the manner in which the efficiency of a candidate for
promotion will be considered along with seniority for
promotions to different grades. For the first promotion,
efficiency of the employee was to be determined on the basis of
recording in his personal file and the report received from the
Controlling Officer of the candidate; for the second promotion,
50% weightage will be given to efficiency, out of which 25%
would be allotted for work performance and 25% would be
allotted to a written test for ascertaining the subject
competence of the candidate and for the third promotion, the
efficiency was to be determined on the basis of recording in the
personal file and the report of the Controlling Officer. The
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Resolution of the Executive Council of the University taken in
its meeting on 26.06.1995 was to be implemented with
immediate effect.
3. Aggrieved by the Resolution of the Executive Council of
the University, some of the appellants filed the Writ Petition
being C.O. No.17139 (W) of 1995 and a learned Single Judge
of the High Court of Calcutta allowed the writ petition in part
and set aside the Resolution of the Executive Council of the
University taken on 26.06.1995 and directed the University to
re-frame its guidelines for promotion strictly in accordance
with the Government Order dated 17.10.1985 in the light of
the observations made in the judgment and to give promotion
to the candidates on the basis of the Government Order dated
17.10.1985 after re-framing the guidelines.
4. The University challenged the judgment of the learned
Single Judge before the Division Bench of the High Court of
Calcutta and the Division Bench held in the impugned
judgment and order that under Section 21 (xiii) of the
Burdwan University Act, 1981 the Executive Council of the
University was empowered to determine, with the approval of
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the State Government, the terms and conditions of service of
non-teaching staff of Colleges other than Government Colleges,
but no approval of the State Government had been taken to
the Resolution of the Executive Council of the University
adopted in its meeting held on 26.06.1995. By the impugned
judgment and order, the Division Bench of the High Court of
Calcutta directed the University to send the proposal in the
Resolution of the Executive Council of the University adopted
on 26.06.1995 to the State Government for its approval and
further directed that in case the State Government approves
the proposal, the University will undertake the exercise of
promotion of their staff. Pursuant to the impugned judgment
and order of the Division Bench, the proposal was sent to the
State Government and the State Government by its order
dated 10.10.2002 has approved the Resolution of the
Executive Council of the University adopted on 26.06.1995.
5. The contention raised before us by the learned counsel
for the appellants was that the Resolution of the Executive
Council of the University adopted on 26.06.1995 will be
effective only from 10.10.2002 when the State Government
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approved the Resolution and will not apply to any promotions
made prior to 10.10.2002 because under Section 21 (xiii) of
the Burdwan University Act, 1981 the Executive Council of the
University could determine the terms and conditions of the
service of the non-teaching staff of the Colleges other than
Government Colleges with the approval of the State
Government and not otherwise. Relying on the decisions of
this Court in T. R. Kapur & Ors. v. State of Haryana &
Ors. [AIR 1987 SC 415], Prem Kumar Verma & Anr. v.
Union of India & Ors. [(1998) 5 SCC 457], Union of India v.
S. S. Uppal & Anr. [(1996) 2 SCC 168], Kulwant Kumar
Sood v. State of H. P. & Anr. [(2005) 10 SCC 670] and High
Court of Delhi & Anr., Etc. v. A. K. Mahajan & Ors. [(2009)
12 SCC 62], learned counsel for the appellants submitted that
the Resolution of the Executive Council of the University
adopted on 26.06.1995 and approved by the State
Government on 10.10.2002 cannot, therefore, apply to
promotions to vacancies which have occurred prior to
10.10.2002. Learned counsel for the Intervenors supported
the aforesaid stand of the appellants.
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6. Learned counsel for the respondents Nos. 1 to 3, on the
other hand, submitted that Section 21 (xiii) used the
expression “approval of the State Government” and not “prior
approval of the State Government” and it has been held by this
Court in U. P. Avas Evam Vikas Parishad & Anr. v. Friends
Co-operative Housing Society Ltd. & Anr. [(1995) Supp.(3)
SCC 456] and High Court of Judicature for Rajasthan v. P.
P. Singh & Anr. [(2003) 4 SCC 239] that when an approval is
required, an action holds good and only if it is disapproved it
loses its force. He further submitted that promotions made on
the basis of Resolution of the Executive Council of the
University adopted on 26.06.1995, therefore, hold good and
now that the State Government has approved the Resolution of
the Executive Council of the University adopted on 26.06.1995
by order dated 10.10.2002, the promotions made on the basis
of the Resolution dated 26.06.1995 of the Executive Council of
the University hold good and cannot be set aside by this
Court.
7. In Black’s Law Dictionary (Fifth Edition), the word
“approval” has been explained thus: “the act of confirming,
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ratifying, assenting, sanctioning, or consenting to some act or
thing done by another.” Hence, approval to an act or decision
can also be subsequent to the act or decision.
8. In U. P. Avas Evam Vikas Parishad (supra), this Court
made the distinction between permission, prior approval and
approval. Para 6 of the judgment is quoted hereinbelow:
“6. This Court in Life Insurance Corpn. of India v.
Escorts Ltd. [(1986) 1 SCC 264], considering the
distinction between “special permission” and
“general permission”, previous approval” or “prior
approval” in para 63 held that: “We are conscious
that the word `prior’ or `previous’ may be implied if
the contextual situation or the object and design of
the legislation demands it, we find no such
compelling circumstances justifying reading any
such implication into Section 29(1) of the Act.”
Ordinarily, the difference between approval and
permission is that in the first case the action holds
good until it is disapproved, while in the other case
it does not become effective until permission is
obtained. But permission subsequently granted
may validate the previous Act, it was stated in Lord
Krishna Textiles Mills Ltd. v. Workmen [AIR 1961 SC
860], that the Management need not obtain the
previous consent before taking any action. The
requirement that the Management must obtain
approval was distinguished from the requirement
that it must obtain permission, of which mention is
made in Section 33(1).”
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9. Following the decision in U. P. Avas Evam Vikas
Parishad (supra), this Court again held in High Court of
Judicature for Rajasthan v. P. P. Singh & Ors. (supra) in
para 40:
“When an approval is required, an action holds good
and only if it is disapproved it loses its force. Only
when a permission is required, the decision does
not become effective till permission is obtained.
(See U.P. Avas Evam Vikas Parishad v. Friends
Coop. Housing Society Ltd.).”
10. Section 21 (xiii) of the Burdwan University Act, 1981 is
quoted herein below:-
“21. Subject to the provisions of this Act, the
Executive Council shall exercise the following
powers and perform the following functions:
(i) to (xii) ……………………
(xiii) to determine, with the approval of the State
Government, the terms and conditions of service
of Librarians and non-teaching staff.”
The words used in Section 21 (xiii) are not “with the
permission of the State Government” nor “with the approval of
the State Government”, but “with the approval of the State
Government”. If the words used were “with the permission of
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the State Government”, then without the permission of the
State Government the Executive Council of the University
could not determine the terms and conditions of service of
non-teaching staff. Similarly, if the words used were “with the
prior approval of the State Government”, the Executive
Council of the University could not determine the terms and
conditions of service of the non-teaching staff without first
obtaining the approval of the State Government. But since the
words used are “with the approval of the State Government”,
the Executive Council of the University could determine the
terms and conditions of service of the non-teaching staff and
obtain the approval of the State Government subsequently and
in case the State Government did not grant approval
subsequently, any action taken on the basis of the decision of
the Executive Council of the University would be invalid and
not otherwise.
11. We, therefore, hold that promotions to different grades
of non-teaching staff made by the University on the basis of
the principles laid down in the Resolution of the Executive
Council of the University adopted on 26.06.1995 are valid as
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the Resolution has been approved by the State Government on
10.10.2002. This appeal is without any merit and is
dismissed with no order as to costs.
……………………..J.
(Markandey Katju)
……………………..J.
(A. K. Patnaik)
New Delhi,
March 16, 2010.